The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1887-05-04

Ing her right In TINS respect as lnen cCnlerreu
in Section g. now 2O37 General Statutes, (Hlth
those important words omittedD provided In
its clause, MS stated above, to wit: Ihat all
deeds, mortgages and legnl papers That she
manner and should have the same legal @orce
and effect as If sno were unmarried. Wa DO
not conceive. however, that this recognition
was the comforting of an independent power
| to execute mortgage or other paper, In nudi-
tion TO the power conferred In Section oil the
Act, but we think it was mere declaration
that such papers, deeds, mortgages as sle
could legally make under the general provi-
| sions OF the Act should be made as other peo-
pie made them, that Is, in the manner fss to
form. &c. &C., and when so made they should
have &C, and, therefore, instead OF iookiEg to
this section to ascertain What papHst sne end
! To Section 2,037, where her powers are express.
iy conferred. In other words, Section 2G37 Of
the General Statutes and section o. the
Constitution are the sections which confer ,,s
| the powers, and Section 2,OSB declares the
manner in which said powers shall pc exc
cuted. at least rs to the execution OF the pa
ners therein mentioned.
Now the Act of 1870, In Section 8, comforting
AS it did upon married women full power TO
contract and be contracted with, on any an9 9
on:all matters, no doubt this power carried
with II the power to secure the performance
OF her contracts by n mortgage OF her proper
| ty, hence the necessity of Section drescrip-
| Ing the manner OF execution, and II TINS case
had arisen before the amendment mentlonea'
when the powers of the wife were unlinit tied.
Sonbtless the Judgment below would be held
j correct. But II has occurred since, ana tne
| Act as II now reads, must be applied to IL;
and in making the application we are not to
know that said words were at any time ab-
scnt or omitted. ,.
As the section now reads, 1t must be al talt,
ted that no power to contract or be contracted
with except "as to her separate estate" Is con.
ferred upon married woman. That Is the
Language Of the section, and there ls no am
bignity about it, and there being no addition,
m fnrr NJ here. EXERCISE
any other must be illegal.
Now II is admitted or at least the Judge
has found as Il matter OF fact, and there is nc
exception to said finding, that the notes sued
estate" OF Mrs. Rush, so that the conclusion is
inevitable, and the Circuit Judge has 80 held
that they must be expunged rom me case.
| her. Can 1t be construed and held contract
"as to her separate estate?" II not. cs.n IL be
enforced in face of the fact that she ca make
gage a contract in the sense OF the Act7
! * contract Is an agreement founded upon O
legal consideration. to do, or not to 40, &C,
&C A mortgage Is the imposition OF lien on
certain property mentioned, given TO secure
contract, but It'll something independent OF
| the contract Itself, and Is collateral thereto.
| It Is means consented TO, by Whlch tne con-
tract to which it's collateral may be enforced.
| Doubtless, as we have said, the power to make
| a contract carries with 1t the power TO execute
q mortgage to secure 1t, but where there Is no
power to make the contract TO be secured.
| whence comerh the power to secure 1t by
mortgage? II 1t exists At all It must be found
elsewhere thnn in Section 2,03T. because. as
we have seen, that confines the wife entlreiy
! TO contracts, "as to her separate estate" II 1s
contended that 1t Is found In the last clause Oh
2,U36, quoted above, so that the question comes
back again, does this clause confer such
power?
| of the intent of this clause, to wit: that II
was no'hing more than TO prescribe the man
ner of the execution OF the papers, when
wife coulh make under the other provisions
may say 1t cln hardly be supposed that The
General Assembly intended to confer power
on Il married woman to make 81 mortgage OF
her estate to secure contract, which contract
it had declined TO permit her to make. This
is the exact case claimed here.
1t is conceded that the notes given by Mrs.
Rush are nullities as 10 her; on the ground
rate estate" she was without power to give
them. They are, therefore, confessedly utter
ly void as 20 her, and yet 1t Is claimed that
she has made her estate liable TO pay them by
her mortgage.
There may be, in some.respects, difference
between one being liable personally on con.
! tract, and certain OF his property being made
tract il, perSonam and contract In rem. Hut
that difference cannot be interposed here to
support the Judgment below. The scheme OF
the married woman Act was chiehy-we may
and to consecrate II 10 her use, especially
against the debts of her husband: We can
not, therefore, suppose that II was Intended to
limit her power TO contract personally, as
TO her separate estate, and then give her the
power to mortgage unlimitediy said estate,
not only for her own debt, but for the DEBT OF
any one else, and whether contracted las to
her separate estate or not" yet such would be
the result of the position contended for. 1t
seems to us that before we could reach such O
conclusion bearing such fruit, we should find
some language expressly conferrlng this re-
markable, Inconsistent power, instead Of rely.
ing on d mere inference drawn from general
terms like those in Section 2O36.
| :iIf this be the true doctrine. we would have
man having no power to make any contract
herself, except "as TO her separate estate, "
(Section 20S7,) and yet having the power TO
pledge her whole estate by mortgage to secure
the contract of another, made Without refer
ence to said estate-thus sowing the seeds OF
| Inevitable destruction in the very scheme
which the married woman's Act was intend
ed to establish-the protection OF her proper.
free from the debts and contracts Of her hus.
| band.
the scheme Of the Act is gone; because 1t Is
will execute any paper desired by her hus-
band, especially If there be hope to save him
from wreck or financial ruin.
But admit that mortgage Is contract III
''as to the separate estate Of Mrs. Rush
| True, IL embraces her separate estate, but did
it have reference thereto in the sense OF the
Acl7 The only reference It had was to en-
cumber It with q lien for the CT ntract OF an
other. Is such q reference included In the
| meaning of the words las to her separate
estate?" Was 1t intended by restricting a
rate estate" to include every and all contracts
that might in any way affect or bear upon
said estate? If 30, she lad this power In full
before these words were inserted In 1852, as
we have seen above. AS the section stood
| origin ally she had all the powers of q femme
sole. She could make contract or any kind,
and her separate property was liable, like The
property of any other debtor, to he reached
by action and Judgment, and she could mort
gage 1t. as she pleased. Why then insert the
suggested words? 1t must have been because
the Legislature saw the danger TO her, In this
broad power, and with the view to shield her
from IL, and doubtless to prevent her from do
Ing the very thing attempted here, she was
conflne ed by the amendment to contracts In
tended to benefit her estate, or ut least hav-
ing some direct reference TO 1t, independent
of any other contract to which 1t might be
attempted to be pledged as collateral.
Now the mortgage here Is not contract of
this kind; 1t was not intended In itself to
secure any benefit or improvement to the sepa-
rate estate or to effect IL In any way In the
sense Of the act. Nor was 1t Intended to Sc
cure contract made for that purpose. On
the contrary, 1t was intended to secure the
purchase money OF steam engine, bought by
her husband, and. according to the facts
found having no reference whatever to the
separate estate OF Mrs. Rush.
1t is not our province to suggest what the
law should be, either In this or in any other
matter, and this we have not attempted here.
Our duty is to declare what the law is in the
case before u.s. and to this we have confined
ourselves, reaching the conclusion in so far us
II depends upon the construction Of the Con
stitution and the Act of 1870, that the jurlg-
ment below must be reversed There Is now
nothing left but to show that our decided
cases are not in conflict with the conclusion
reached, which we think will appear from
short reference thereto. The cases In our re.
ports touching this subject are Witscll vS.